United States v. Diaz-Rivera

United States Court of Appeals
For the First Circuit

No. 18-1461

UNITED STATES OF AMERICA,

Appellee,

v.

HENRY DÍAZ-RIVERA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Torruella, Dyk,* and Thompson,
Circuit Judges.

Alex Omar Rosa-Ambert, on brief for appellant.
Antonio L. Pérez-Alonso, Assistant United States Attorney,
with whom W. Stephen Muldrow, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, on brief for appellee.

April 20, 2020

* Of the Federal Circuit, sitting by designation.
 TORRUELLA, Circuit Judge. Defendant-Appellant Henry

Díaz-Rivera ("Díaz") pled guilty to one count of possession with

intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(C), and one count of using a firearm during and in

relation to a drug-trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A)(i). Díaz now challenges the procedural and

substantive reasonableness of his upwardly variant sentence.

After careful review, we affirm.

I. Background

Because Díaz pled guilty, we draw the relevant facts

from the change-of-plea colloquy, the unchallenged portions of the

Presentence Investigation Report ("PSR"), and the sentencing

hearing transcript. See United States v. Fernández-Santos, 856

F.3d 10, 14 n.1 (1st Cir. 2017).

A. Facts Surrounding the Offense

On March 24, 2017, Puerto Rico police officers who were

patrolling an area in Toa Alta, Puerto Rico observed a vehicle

parked on the side of the road. Upon approaching the vehicle, the

officers asked the driver -- later identified as Díaz -- for his

driver's license and car registration, which he refused to provide.

Díaz then attempted to drive away twice but was eventually stopped.

During the intervention, an officer noticed that Díaz was holding

a small, red-colored zip-lock baggie containing aluminum foil

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wrapping, which was later determined to contain heroin. When Díaz

exited the car, the responding officers saw that he was carrying

a firearm, and they arrested him. While searching Díaz incident

to the arrest, officers seized from his person a .40-caliber Glock

pistol and a magazine containing a total of ten rounds of

ammunition. Agents also seized: eighty-six small plastic bags

containing less than fifty grams of cocaine; five cellular phones;

$572 in cash; a ledger containing names and numbers; a selector

switch "chip" used to modify the Glock pistol to fire

automatically; forty-one rounds of .40-caliber ammunition; eight

rounds of 7.62-caliber ammunition; a part of a firearm and other

accessories described as a slide-back plate; 100 empty plastic

vials; four red empty aluminum wrappings; and two small empty

plastic zip-lock baggies.

B. Procedural History

On March 30, 2017, a federal grand jury sitting in the

District of Puerto Rico returned a six-count indictment charging

Díaz with possession with intent to distribute cocaine, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count One);

possession with intent to distribute heroin, in violation of

21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count Two); carrying and

using a firearm during and in relation to a drug-trafficking crime,

in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count Three);

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carrying and using a machinegun during and in relation to a

drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)

(B)(ii) (Count Four); possession of a machinegun, in violation of

18 U.S.C. § 922(o) (Count Five); and being a convicted felon in

possession of a firearm and ammunition, in violation of 18 U.S.C.

§ 922(g)(1) (Count Six). On July 11, 2017, Díaz pled guilty to

Counts One and Three.1 The plea agreement provided for a total

offense level of ten, but the parties did not stipulate as to

Díaz's criminal history category. The parties agreed to recommend

a sentence of imprisonment of one year for Count One to be served

consecutively to the sentence imposed for Count Three. With

respect to Count Three, which carries a statutory minimum term of

five years of imprisonment, see 18 U.S.C. § 924(c)(1)(A)(i), the

parties took into consideration that Counts Two, Four, Five, and

Six were going to be dismissed and thus agreed that Díaz would

recommend a sentence of no less than nine years of imprisonment

and the Government would recommend eleven years of imprisonment.

Díaz also agreed to waive his right of appeal if the district court

imposed a sentence of twelve years of imprisonment or less,2 and

1 The remaining counts were dismissed pursuant to the plea
agreement.
2 The parties agree that the waiver of appeal provision in the
plea agreement does not bar this appeal because the sentence
imposed was longer than the range to which they had agreed. See

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he acknowledged that the district court could, in its discretion,

impose any sentence within the statutory maximum for each offense.

For Count One, the final PSR, like the plea agreement,

calculated a total offense level of ten, which resulted from a

base offense level of twelve and a two-level decrease for

acceptance of responsibility. Díaz had two prior Puerto Rico

convictions: possession of an unlicensed firearm and illegal

possession of a firearm (a machinegun). Accordingly, the PSR

determined that he had a criminal history category of III, which

coupled with the total offense level of ten, yielded a guidelines

sentencing range ("GSR") of ten to sixteen months of imprisonment.

For Count Three, the PSR found that the guideline sentence was the

minimum term of imprisonment required by statute, which was five

years pursuant to 18 U.S.C. § 924(c)(1)(A)(i), and that the term

had to run consecutively to any other term imposed.

The PSR also listed ten arrests -- all in Puerto Rico -

- which did not lead to convictions.3 Two of those arrests related

to illegal drug possession, and two others related to the use

United States v. Fernández–Cabrera, 625 F.3d 48, 51 (1st Cir.
2010).
3 In fact, two of the arrests led to acquittals.

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and/or possession of a firearm.4 Additionally, the PSR described

Díaz's history of substance abuse, which spanned approximately

fourteen years and consisted of the use of marijuana, Percocet,

Xanax, and cocaine. Díaz filed several objections to the PSR,

most of which are not relevant to this appeal. Díaz initially

objected to the inclusion of some arrests for which there were no

available or translated documents that verified them, and he also

objected to some arrests as too "remote to the instant offense."

Díaz ultimately withdrew the objections at the sentencing hearing.

In his sentencing memorandum, Díaz acknowledged that he

"ha[d] been living for several years, including the day of the

arrest in the instant case, with the illness of addiction to

controlled substances, including heroin and cocaine, among

others." He similarly acknowledged that he had "previous

convictions at state level and arrests at state level." Díaz

4 The ten arrests were, in chronological order: a 2004 "threats"
arrest; a 2004 first-degree murder, firearm brandishing or firing,
and unlicensed firearm possession arrest (acquitted); a 2004
controlled substances possession arrest; a 2005 unlicensed firearm
possession and attempted first-degree murder arrest; a 2006
firearm brandishing or firing, unlawful ammunition possession,
unlicensed firearm possession, and attempted first-degree murder
arrest; a 2007 unlicensed firearm possession, attempted
first-degree murder, and first-degree murder arrest (acquitted);
a 2009 controlled substances arrest; a 2010 criminal contempt
arrest; a 2015 "conjugal threats" arrest; and a 2015 resistance or
obstruction of a public authority and mandatory auto insurance
violation arrest.

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requested a sentence of no more than 120 months of imprisonment,

which, in his view, was "sufficient and not more than necessary."

C. Sentencing

At the sentencing hearing, defense counsel re-emphasized

Díaz's battle with drug addiction and requested a total sentence

of 120 months of imprisonment. In accordance with the plea

agreement, the Government urged the district court to sentence

Díaz to a total of twelve years of imprisonment.

As to Count One, the district court adopted the PSR's

calculations of the total offense level, the criminal history

category, and the GSR (ten to sixteen months of imprisonment). As

to Count Three, the court noted that the guideline sentence was

the statutory minimum term of imprisonment of sixty months, to be

served consecutively to the term of imprisonment for Count One.

The court also pointed out that the firearm involved in the offense

had been modified to shoot automatically. It then listed Díaz's

prior arrests, reciting the PSR's explanation of their

disposition.

The court then stated that it had considered the

sentencing factors set forth in 18 U.S.C. § 3553(a) and referred

to Díaz's age, unemployment, and history of drug use. Afterwards,

it proceeded to list the items that were seized from Díaz.

Finally, after considering the nature of the charges that were

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dismissed pursuant to the plea agreement, the court sentenced Díaz

to an upwardly variant sentence of 180 months of imprisonment

(sixteen months for Count One and 164 months for Count Three).

The court explained that "[b]ecause of the seriousness of the

charges that ha[d] been dismissed against Mr. Díaz [under the plea

agreement],5 his extensive prior criminal record, and the need for

deterrence in Puerto Rico," the sentences the parties had requested

did not "reflect the seriousness of Mr. Díaz's offenses, d[id] not

promote respect for the law, d[id] not protect the public from

further crimes by Mr. Díaz, and d[id] not address the issues of

deterrence and punishment."

After the court pronounced the sentence, defense counsel

objected to it as procedurally and substantively unreasonable. He

elaborated that he objected to the "findings" and "analysis" of

United States v. Flores-Machicote, 706 F.3d 16 (1st Cir. 2013),

and asserted that "certainty of punishment ha[s] a deterrent

effect, but not the amount of time." He further asked the court

to reconsider its sentence, specifically requesting that it impose

the Government's requested sentence instead. He acknowledged that

Díaz had "a criminal history," referring to the Puerto Rico

5 The dismissed charges the district court referred to were Counts
Two, Four, Five, and Six of the indictment.

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arrests, and asserted that the fact that some of those cases had

not been re-filed after having been dismissed on probable cause or

speedy trial grounds "should not be taken against [Díaz]." The

court denied Díaz's request and confirmed that "one of the things

that [it] took into consideration" was the fact that the crimes

charged during Díaz's arrests were either dismissed or no probable

cause was found. Defense counsel again generally objected to the

sentence as both procedurally and substantively unreasonable.

This timely appeal followed.

II. Discussion

Díaz challenges both the procedural and substantive

reasonableness of his sentence. In sentencing appeals, appellate

review is bifurcated. United States v. Ruiz-Huertas, 792 F.3d

223, 226 (1st Cir. 2015). We must first examine claims of

procedural error, such as "failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence -- including an explanation for any

deviation from the Guidelines range." United States v.

Bermúdez-Meléndez, 827 F.3d 160, 163 (1st Cir. 2016) (quoting Gall

v. United States, 552 U.S. 38, 51 (2007)). "If the sentence passes

procedural muster, we then examine any challenge to its substantive

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reasonableness." United States v. Miranda-Díaz, 942 F.3d 33, 39

(1st Cir. 2019). In making our determination, we "tak[e] account

of the totality of the circumstances," Ruiz-Huertas, 792 F.3d at

226, and keep in mind that "there is no single reasonable sentence

'but, rather, a universe of reasonable sentencing outcomes,'"

Miranda-Díaz, 942 F.3d at 42 (quoting United States v.

Vargas-García, 794 F.3d 162, 167 (1st Cir. 2015)). We also

"proceed on the understanding that it is not our task simply to

second-guess a sentencing court's considered decisions about

matters squarely within its discretion." Id. A sentence is

substantively reasonable if it has a "plausible sentencing

rationale" and it reaches a "defensible result." Id. (quoting

United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)).

A. Procedural Reasonableness

Díaz first challenges the procedural reasonableness of

his sentence, arguing that, in fashioning the sentence, the

district court erroneously relied on his unadjudicated prior

arrests. He asserts that his upwardly variant sentence was based

on the court's "impression of the nonaction of the state court in

prosecuting [Díaz]" and on it "equating arrests quantity with

possibility of reci[divism]." In that sense, he posits, this

appeal is "no different" from that which led to our recent decision

in United States v. Marrero-Pérez, 914 F.3d 20 (1st Cir. 2019).

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According to Díaz, Marrero-Pérez stands for the proposition that

sentencing courts "may not factor unproven charges in their

Sentencing and Judgment without finding, by a preponderance of the

evidence, that the conduct underlying those charges took place."

Generally, we review procedural reasonableness

challenges under "a multifaceted abuse-of-discretion standard

whereby 'we afford de novo review to the sentencing court's

interpretation and application of the sentencing guidelines, assay

the court's factfinding for clear error, and evaluate its judgment

calls for abuse of discretion.'" United States v. Arsenault, 833

F.3d 24, 28 (1st Cir. 2016) (quoting Ruiz-Huertas, 792 F.3d at

226). When a defendant does not raise a procedural objection at

sentencing, however, we review for plain error. United States v.

Sosa-González, 900 F.3d 1, 4 (1st Cir. 2018) (citing United States

v. Reyes-Rivera, 812 F.3d 79, 85 (1st Cir. 2016)).

Díaz urges us to apply the abuse of discretion standard

because he "adequately objected to the sentence's

unreasonableness" below. The Government counters that Díaz waived

his claim on appeal because the objections he made to the prior

arrests are different from the arguments he presents on appeal.

And even if the claim is not waived, the Government argues that we

should review it for plain error because Díaz's objection was too

general.

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 At the sentencing hearing, after the court imposed the

sentence, Díaz objected to it as both procedurally and

substantively unreasonable. With regards to the arrest record,

Díaz argued that the court should not hold against him the fact

that most of his Puerto Rico arrests had been dismissed and the

State had chosen not to re-file the cases. Díaz did not mention

Marrero-Pérez in his request for reconsideration below or

explicitly claim that the court could not rely on those arrests

because they did not result in convictions. Nevertheless, his

argument at the sentencing hearing was sufficient to at least bring

to the Government's attention the substance of the error he now

asserts the court committed. Based upon Díaz's argument, the

Government attempted to confirm the court's reasoning, stating the

following: "Based on our interpretation of the Court's sentencing

explanation, we understand that Your Honor is not taking notice of

the Defendant actually committing the crimes that were charged

during his arrests. That is our impression." The court responded

that "the fact that those crimes were either dismissed or no

probable cause was found [was] one of the things that [it] took

into consideration." Based on the record, the court seems to have

had the opportunity to rectify Díaz's claimed error, such that we

could find his challenge to be preserved. See United States v.

Soto-Soto, 855 F.3d 445, 448 n.1 (1st Cir. 2017). However, we do

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not dwell on this too long because Díaz does not prevail even under

the more favorable abuse-of-discretion standard.

Díaz's primary quarrel with the procedural

reasonableness of his sentence is that the district court

improperly relied on his history of prior arrests, which had not

been adjudicated, to impose an upward variance. Such reliance, he

contends, is prohibited under Marrero-Pérez.

In Marrero-Pérez, we reviewed under plain error an

upward departure imposed largely on the basis of prior arrests

that did not result in convictions and most of which were not

supported by reliable information that the underlying conduct had

actually occurred. 914 F.3d at 22-24. We held that "an error

occurs when a district judge relies on an arrest report, without

some greater indicia of reliability that the conduct underlying

the arrest took place." Id. at 24. As we recently recognized in

United States v. Colón-Maldonado, No. 18-1388, 2020 WL 1081661, at

*6 n.8 (1st Cir. March 6, 2020), the analysis in Marrero-Pérez

also relied on U.S.S.G. § 4A1.3, which states that "[a] prior

arrest record itself shall not be considered for purposes of an

upward departure under this policy statement." Id. (alteration in

original) (quoting § 4A1.3(a)(3)). Because of Marrero-Pérez's

reference to § 4A1.3, some of our decisions have suggested, without

squarely deciding, that Marrero-Pérez does not make it plain error

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to rely on bare arrest reports to impose an upward variance. See

id. (citing Miranda-Díaz, 942 F.3d at 40 (finding a defendant's

reliance on Marrero-Pérez to be mislaid, in part, because the

defendant's sentence involved an upward variance and not a

departure as in Marrero-Pérez) and United States v.

Rodríguez-Reyes, 925 F.3d 558, 564–65 (1st Cir. 2019)). In

Colón-Maldonado, however, we questioned whether the "departure-

variance distinction" would hold up "[i]f some future case turned

on it" and recognized that Marrero-Pérez "rest[s] on [the] basic

principle" that "a bare arrest or charge does not prove the

defendant committed the crime." Id.

Even if we assume that Marrero-Pérez applies both in the

upward variance and departure contexts, we find that Díaz's

reliance on that case is still inapposite. We merely decided there

that an error occurs when a sentencing court "equate[s] arrest

with guilt," Marrero-Pérez, 914 F.3d at 23, or when it "relies on

an arrest report, without some greater indicia of reliability that

the conduct underlying the arrest took place," id. at 24 (emphasis

added). The Court in Marrero-Pérez was more concerned with a

sentencing court's reliance on arrests alone and "other dubious

inferences" that may arise from that reliance. See id. at 23.

On the other hand, Marrero-Pérez does recognize that in

some cases "a reasonable person might . . . assign some weight to

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a collection of arrests," id. at 22, and that "serious prior crimes

and recidivist behavior" are "proper considerations at

sentencing," id. at 23 (citing 18 U.S.C. § 3553(a)(1)-(2)(C)).

Indeed, sentencing courts have the discretion to impose upward

variances where appropriate, as long as the courts do not incur in

one of the types of procedural error. "No limitation shall be

placed on the information concerning the background, character,

and conduct of a person convicted of an offense which a court of

the United States may receive and consider for the purpose of

imposing an appropriate sentence." 18 U.S.C. § 3661. That said,

a sentencing court "must take pains to base [its] sentencing

judgments upon reliable and accurate information." United States

v. Tavano, 12 F.3d 301, 305 (1st Cir. 1993). Thus, it may take

into account "any information that has sufficient indicia of

reliability." United States v. Díaz-Arroyo, 797 F.3d 125, 130 n.3

(1st Cir. 2015). In doing so, it has "wide discretion to decide

whether particular evidence is sufficiently reliable to be used at

sentencing." United States v. Cintrón-Echautegui, 604 F.3d 1, 6

(1st Cir. 2010).

Contrary to Díaz's contention, the record does not

suggest that the district court "equate[d] [his] arrest[s] with

guilt." Marrero-Pérez, 914 F.3d at 23. Nor does the record

reflect that the court relied solely on Díaz's arrests or placed

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undue weight on either the arrests themselves or their underlying

conduct. See id. at 24. The court simply recited the offenses

with which Díaz had been charged and the disposition of those

charges as that information appeared in the PSR. We have not

assigned error "in the district court's brief recitation of

procedural facts . . . adumbrated in the unchallenged [PSR],

notwithstanding that those facts related to a dismissed charge."

Miranda-Díaz, 942 F.3d at 41; see also Rodríguez-Reyes, 925 F.3d

at 563 ("To the extent [the defendant] is arguing that the court

errs in merely reciting an arrest record, he is flatly wrong."

(citing United States v. Mercer, 834 F.3d 39, 49-50 (1st Cir.

2016))). A sentencing court can indeed rely on the undisputed

information contained in the PSR at sentencing as "generally, a

PSR bears sufficient indicia of reliability."6 United States v.

Rondón-García, 886 F.3d 14, 25 (1st Cir. 2018) (quoting United

States v. Olivero, 552 F.3d 34, 40 (1st Cir. 2009)). "[N]othing

in our precedent forbids a sentencing court's mere mention of the

undisputed facts surrounding a dismissed charge as part of a

broader assessment of the defendant's troubling trajectory

6 While Díaz originally objected to the PSR's inclusion of arrests
when the documents verifying them were not available or translated
into English or because the arrests were too remote, he withdrew
the objections at sentencing.

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regarding his serial encounters with the criminal justice system."

Miranda-Díaz, 942 F.3d at 41.

Moreover, the court clarified that the disposition of

the crimes charged related to the arrests was "one of the things

that [it] took into consideration." It also considered Díaz's

personal characteristics -- that he was thirty-two years old, had

a seventh grade education, was unemployed, and had a history of

drug use; the nature of the instant offense, which included the

seizure of drugs, drug paraphernalia, cash, ammunition, and a

firearm modified to fire automatically; the counts being dismissed

as part of the plea agreement, which the court viewed as involving

serious charges; and his two prior convictions involving

violations similar to the instant offense of conviction

(unlicensed possession of a firearm and ammunition and illegal

possession of a firearm).7 Thus, we cannot discern from the record

that the court crafted an upwardly variant sentence based on its

reliance on, or by impermissibly assigning undue weight to, an

arrest record or the conduct that gave rise to it. Accordingly,

we find this part of Díaz's procedural unreasonableness challenge

unavailing.

7 Marrero-Pérez recognizes that a sentencing court can vary
upwardly on the basis of prior convictions. 914 F.3d at 24.

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 Díaz also claims that the district court erred in failing

to consider "the correlation between [Díaz's] addiction and his

Criminal History" as a mitigating factor. Because Díaz did not

raise this argument below in objecting to the procedural

reasonableness of his sentence, we review his claim for plain

error. See Soto-Soto, 855 F.3d at 448. Under the plain error

standard, the defendant must show: "(1) that an error occurred

(2) which was clear or obvious and which not only (3) affected the

defendant's substantial rights, but also (4) seriously impaired

the fairness, integrity, or public reputation of judicial

proceedings." Rodríguez-Reyes, 925 F.3d at 563 (quoting United

States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)). Díaz's claim

fails at the first step as his contention is belied by the record.

"Under § 3553(a)(1), a court determining a sentence is

required to consider 'the nature and circumstances of the offense

and the history and characteristics of the defendant,'" such as

drug addiction. United States v. Stile, 845 F.3d 425, 433 (1st

Cir. 2017) (quoting 18 U.S.C. § 3553(a)(1)). The district court

explicitly considered Díaz's history of drug abuse. It explained

at sentencing that it had considered, among other characteristics,

Díaz's "history of using marijuana and cocaine combined with Xanax

and Percocet." It then weighed those facts against the nature and

circumstances of the offense, which involved the seizure of drugs,

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drug paraphernalia, a modified firearm, and ammunition. The court

also considered the seriousness of the other charges in the

indictment, which the parties had agreed to dismiss pursuant to

the plea agreement, and the need to deter future crimes. The

court's decision to assign less weight to a mitigating factor than

Díaz thought it deserved is not an error, much less a plain error.

See United States v. Majeroni, 784 F.3d 72, 78 (1st Cir. 2015)

("That the sentencing court chose not to attach to certain of the

mitigating factors the significance that the appellant thinks they

deserved does not make the sentence unreasonable." (quoting United

States v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011))). Indeed,

the district court had "the latitude to 'emphasize the nature of

the crime over the mitigating factors,' and such a 'choice of

emphasis . . . is not a basis for a founded claim of sentencing

error.'" United States v. Rivera-Clemente, 813 F.3d 43, 53 (1st

Cir. 2016) (alteration in original) (quoting United States v.

Ramos, 763 F.3d 45, 58 (1st Cir. 2014)). Finally, the fact that

the court recommended to Probation that Díaz "participate in the

500-hour drug treatment program that is offered by the Bureau of

Prisons" further refutes Díaz's allegation that the court ignored

his history of addiction. We discern no error by the district

court.

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B. Substantive Reasonableness

Finally, Díaz asserts that his 180-month sentence is

substantively unreasonable. We review this claim for abuse of

discretion as Díaz preserved it by objecting both after the court

pronounced the sentence and at the end of his sentencing hearing.

United States v. Vázquez-Martínez, 812 F.3d 18, 26 (1st Cir. 2016)

(citing United States v. Del Valle-Rodríguez, 761 F.3d 171, 176

(1st Cir. 2014)).

Díaz argues that the district court failed to consider

all mitigating circumstances and that it improperly weighed the

§ 3553(a) factors, specifically, his history of drug abuse. But

as we have already explained, the district court did consider

Díaz's substance abuse (and the § 3553(a) factors) in fashioning

his sentence and it recommended that he participate in a treatment

program during his incarceration. We have said before that "[t]he

relative weight of each [§ 3553(a)] factor will vary with the

idiosyncratic circumstances of each case." United States v. Dixon,

449 F.3d 194, 205 (1st Cir. 2006). We will not deem the sentence

unreasonable because Díaz disagrees with how the court weighed the

factors. See Clogston, 662 F.3d at 593; see also United States v.

Gibbons, 553 F.3d 40, 47 (1st Cir. 2009) ("We will not disturb a

well-reasoned decision to give greater weight to particular

sentencing factors over others.").

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 Next, Díaz argues that the district court lacked a

plausible sentencing rationale for imposing the upward variance

because its reasoning was based, in part, on the incidence of crime

in Puerto Rico and not on Díaz's individual circumstances. He

avers that the district court imposed an upwardly variant sentence

because it found "the nonthreatening process at State level

. . . insufficient[ly] dissuasive." Díaz contends, consequently,

that the sentence was "a direct . . . critique on the Puerto Rico

Judicial system." We have held, however, that "the incidence of

particular crimes in the relevant community appropriately informs

and contextualizes the relevant need for deterrence" and, thus, a

sentencing court may consider "the incidence and trend lines of

particular types of crime in the affected community." United

States v. Flores-Machicote, 706 F.3d 16, 23 (1st Cir. 2013); see

also United States v. Rivera-González, 776 F.3d 45, 50–51

(1st Cir. 2015) (finding that the sentencing court appropriately

considered "the high incidence of violent crime in Puerto Rico").

Certainly, assessment of "community-based considerations" alone

does not relieve the sentencing court of its obligation to base

its sentencing determination on case- and offense-specific

factors. United States v. Ortiz-Rodríguez, 789 F.3d 15, 19–20

(1st Cir. 2015) (quoting Rivera-González, 776 F.3d at 50). And

indeed, the district court here did not base its sentence solely

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on Puerto Rico's crime rate. Rather, as we have explained, the

district court also made clear that it was taking into account all

of the § 3553(a) factors, Díaz's history and characteristics, the

mitigating factors Díaz proffered, the seriousness of the charges

against Díaz that were dismissed pursuant to the plea agreement,

Díaz's prior convictions and history of arrests, the "need for

deterrence," and the fact that the parties' proposed sentences did

not, in the court's view, "reflect the seriousness of Mr. Díaz's

offenses, . . . promote respect for the law, . . . protect the

public from further crimes by Mr. Díaz, and . . . address the

issues of deterrence and punishment." Moreover, Díaz's "repeated

return to criminal behavior despite earlier encounters with the

criminal justice system reflected an abject failure to renounce

criminality and amply justified an upwardly variant sentence."

Miranda-Díaz, 942 F.3d at 43. These considerations taken together

show that the rationale was tailored to the facts and circumstances

of the case and, thus, that the rationale was plausible.

To the extent Díaz argues that the sentence is

substantively unreasonable simply because the court varied

upwardly from the sentences the parties proposed in the plea

agreement and at sentencing, he is wrong. See United States v.

Ubiles-Rosario, 867 F.3d 277, 294 (1st Cir. 2017) (finding that

the district court is not bound by the parties' recommendations);

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Bermúdez-Meléndez, 827 F.3d at 165 (finding that the district court

does not need to explain why it rejected a parties' joint sentence

recommendation). The court's choice to impose a sentence other

than one recommended by the parties is not, in itself, error.

Finally, although Díaz seems to suggest that a lower

sentence would have been sufficient but not greater than necessary,

we have repeatedly held that, after the district court calculates

the GSR, "sentencing becomes a judgment call," United States v.

Politano, 522 F.3d 69, 73 (1st Cir. 2008) (quoting Martin, 520

F.3d at 92), and "[t]here is no one reasonable sentence in any

given case but, rather, a universe of reasonable sentencing

outcomes," Clogston, 662 F.3d at 592 (citing Martin, 520 F.3d at

92). In this case, where Díaz, who had been formerly convicted of

a felony, was found in possession of a dangerous weapon,

ammunition, and controlled substances, in only the latest

occurrence in a pattern of convictions involving firearms and

arrests involving both firearms and controlled substances, we

cannot say that the 180-month sentence imposed, though upwardly

variant, falls outside the "universe of sentencing outcomes," see

id. Our conclusion is strengthened by the fact that Díaz himself

initially agreed to (and requested) an upwardly variant sentence,

albeit of 120 months of imprisonment.

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 In light of this and the sentencing court's explanation

of the sentence, we are satisfied that the court has articulated

a plausible sentencing rationale and arrived at a defensible

result, see Martin, 520 F.3d at 98. No more is required.

III. Conclusion

For the foregoing reasons, Díaz's sentence is affirmed.

Affirmed.

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